Arrow Photo Service, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1954

108 N.L.R.B. 1424 (N.L.R.B. 1954)

1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the plant accounting •department , the sales depart-
ment employees in charge of scheduling , the assistant manager
of the quotation department , the secretary to the vice president
in charge of sales , the secretary inthe advertising department,
the administrative secretary who handles the general bank
accounts , the telephone operator , the bookkeeper in the admin-
istrative accounting department , the employees handling traffic
and claims , and the nurse , but excluding the secretary to the
factory personnel director , the secretary to the executive
vice president , the supervisor of the training and services
department , the assistant head of the billing department, the
general ledger bookkeeper , the bookkeeper who prepares the
confidential payrolls , the assistant to the head of the export
department , the assistant to the head of the IBM department,
and all other supervisors as defined in the Act.
(2) If the nurse does not vote for inclusion in the unit with
the nonprofessional employees , we find the unit setforth above
to be appropriate , with the exclusion , however , of the nurse.
5. The Employer urges that no election be directed at this
time because it is undergoing reorganization . During the
summer of 1953 , majority ownership and control of the Em-
ployer was transferred to the Murray Corporation of America,
whose home office is in Detroit , Michigan . The Murray Corpo-
ration has for many years been engaged in the manufacture of
bodies and stampings for the automobile industry , but has
recently embarked on a program of diversification and expan-
sion into various manufacturing lines . The Employer asserts
that the previous reasons for locating its home office at Ford
City do not necessarily prevail now and that the advent of the
new ownerships means that continuing studies will be made
to decide whether the administrative headquarters should be
moved from Ford City. There are , however, at this time no
plans for transferring the Ford City office elsewhere. The
possibility that the office may be transferred elsewhere is not
a ground for denying present employees the right to select
their bargaining representative at this time. Accordingly, we
shall direct an election within the period usually prescribed.
[ Text of Direction of Election omitted from publication. ]
ARROW PHOTO SERVICE, INC. and MATTHEW McCORKLE.
Case No. 2-CA-2756. June 23, 1954
DECISION AND ORDER
On January 7, 1954, Trial Examiner Lloyd Buchanan issued
his Intermediate Report in the above- entitled proceeding, find-
ing that the Respondent had engaged in certain unfair labor
practices in violation of Section 8 (a) (3) and ( 1) of the National
108 NLRB No. 198.
ARROW PHOTO SERVICE, INC. 1425
Labor Relations Act, and recommending that the Respondent
cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached
hereto . The Trial Examiner also found that the Respondent had
not engaged in independent violations of Section 8 (a) (1) of the
Act and consequently dismissed that portion of the complaint.
Thereafter , both the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner at
the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed . The Board has considered the
Intermediate Report , the exceptions , the briefs , and the entire
record in this case, and hereby adopts the findings , conclusions,
and recommendations of the Trial Examiner, with the following
modifications and additions:
We agree with the Trial Examiner that McCorkle was dis-
charged by the Respondent because he refused to join the
American Federation of Photo Employees Union , Local 21314,
AFL. The Respondent contended that McCorkle quit , or, alter-
natively , that he was discharged for incompetence . On the basis
of the Trial Examiner ' s credibility findings, we find that Mc-
Corkle did not quit, but was discharged because he refused to
join the Union . As there was no union-shop contract in effect,
such discharge constituted a violation of Section 8 (a) (3) and
(1) of the Act.
We also agree with the Trial Examiner that the Respondent
had a duty , following the discriminatory discharge , to make
McCorkle an offer of reinstatement , but we do not agree that
the general manager's suggestion to McCorkle , when he dis-
charged him on Friday , that McCorkle call him on Monday after-
noon , satisfied the Respondent ' s obligation . ' We shall therefore
apply the usual remedy in such situations.
THE REMEDY
Having found that the Respondent has engaged inunfair labor
practices , we shall order it to cease and desist therefrom and
take certain affirmative action designed to effectuate the policies
of the Act . We shall, in accordance with our usual practice,
order the Respondent to offer Matthew McCorkle full reinstate-
ment to his former or a substantially equivalent position, with-
out prejudice to his seniority or other rights and privileges,
and to make him whole for any los s of pay he may have suffered
as a result of the discrimination against him , by payment to
him of a sum of money equal to that which he would have earned
during the period from the date of the Respondent's discrimi-
natory discharge , October 20 , 1952 , to the offer or reinstate-
ment, less his net earnings during said period . 2 Back pay shall
iLannoni Manufacturing Cornpany, 103 NLRB 847; Stationers Corp., 96 NLRB 196; Fox
Midwest Amusement Corporation, 98 NLRB 699; Barr Packing Co , 82 NLRB 1.
2 Lannoin Manufacturing Company, supra; Barr Packing Co., supra.
339676 0 - 55 - 91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be computed in accordance with the policy of the Board
enunciated in F. W . Woolworth Co., 90 NLRB 289.
Although no independent violation of Section 8 (a) (1) of the
Act has been found, we believe that the discriminatory discharge
of McCorkle "goes to the very heart of the Act ." 3 We shall
therefore order that the Respondent cease and desist from in-
fringing in any manner upon the rights guaranteed in section 7
of the Act.
CONCLUSIONS OF LAW
In addition to the Conclusions of Law , Nos. 1, 2, 3, and 4 set
forth in the Intermediate Report annexed hereto , the Board
makes the following conclusion:
5. The Union , American Federation of Photo Employees
Union , Local 21314 , AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
ORDER
Upon the entire record in the case andpursuant to Section 10
(c) of the National Labor Relations Act, as amended , the National
Labor Relations Board hereby orders that:
1. The Respondent , Arrow Photo Service, Inc., New York,
New York, its officers, agents , successors , and assigns , shall:
a. Cease and desist from:
(1) Encouraging membership in any labor organization of its
employees by discharging its employees or discriminating in
any other manner in respect to their hire or tenure of employ-
ment, or any term or condition of employment.
(2) In any • other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization , to form labor organizations , to join or assist
labor organizations , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other con-
certed activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrainfrom any or all of
such activities , except to the extent that such right may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment , as authorized in
Section 8 ( a) (3) of the Act.
b. Take the following affirmative action , which the Board
finds will effectuate the policies of the Act:
(1) Offer to Matthew McCorkle immediate and full rein-
statement to his former or a substantially equivalent position
without prejudice to his seniority or other rights and privileges.
(2) Make Matthew McCorkle whole for any loss of pay he may
have suffered by reason of the discrimination against him, in the
manner set forth above in the section entitled " The Remedy.-
3 Entwistle Mfg. Co ., v. N. L R. B , 120 F 2d 532 (C A. 4).
ARROW PHOTO SERVICE, INC. 1427
(3) Pest at its place of business in New York, New York,
copies of the notice attached hereto andmarked "Appendix A."'
Copies of said notice, to be furnished by the Regional Director
for the Second Region, shall, after being duly signed by the
Respondent's representative, be posted by the Respondent
immediately upon receipt thereof, and be maintained by it for
sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(4) Notify the Regional Director for the Second Region, in
writing, within ten (10) days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
alleges that the Respondent independently violated Section 8 (a)
(1) of the Act, be, and it hereby is, dismissed.
Member Murdock took no part in the consideration of the
above Decision and Order.
4In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pur-
suant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor
Relations Board, and in order to effectuate the policies of the
National Labor Relations Act, as amended, we hereby notify
our employees that:
WE WILL NOT encourage membership in any labor
organization of our employees by discharging any of our
employees or discriminating in any other manner in respect
to their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
the right to self-organization, to form labor organi-
zations , to join or assist labor organizations , to bar-
gain collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
of such activities, except to the extent that such
right may be affected by an agre ement requiring
membership in a labor organization as a condi-
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion of employment , as authorized in Section 8 (a) (3) of
the Act.
WE WILL offer Matthew McCorkle immediate and full
reinstatement to his former or a substantially equivalent
position , without prejudice to his seniority or other rights
and privileges.
WE WILL make Matthew McCorkle whole for any loss of
pay su:fered as a result of the discrimination against him.
ARROW PHOTO SERVICE, INC.
Employer.
Dated ................ By....................................................
(Representative) (Title)
This notice must remain posted for 60 days from the date
hereof, and must not be altered, defaced, or covered by any
other material.
Intermediate Report and Recommended Order
The complaint herein alleges that the Respondent has violated Section 8 (a) (3) of the National
Labor Relations Act, as amended, 61 Stat. 136, by discharging Matthews McCorkle on October
17, 1952, and thereafter failing and refusing to reinstate him, because he refused to loin or
assist American Federation of Photo Employees Union, Local 21314, AFL; and Section 8 (a)
(1) by said alleged acts and by threatening its employees for failure to join or assist said
Union. The answer denies the allegations of unfair labor practices. A hearing was held before
me at New York, New York, on October 12 and 22 to 26, inclusive. In lieu of briefs, counsel
for each party has submitted a letter on the question of constructive discharge.
After the close of the hearing, counsel stipulated to correction of the transcript in certain
particulars, subject to approval. The stipulation is hereby approved and the record corrected
as noted in "Appendix A" attahced hereto.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE RESPONDENT'S BUSINESS
The facts concerning the Respondent's business were stipulated and, as stipulated, found on
the record, and the further finding was made on the record that during the calendar year 1952
the Respondent was engaged in commence within the meaning of Section 2 (6) and (7) of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. The alleged independent violation of Section 8 (a) (1)
About the beginning of May 1952 McCorkle was hired by Mrs. Kaiden, the Respondent's
active officer in the business. He worked in the darkroom, and made precision art prints for
use in motion picture displays. Although the Respondent's collective-bargaining agreement
with Local 21314 did not require that all employees join the Union, McCorkle was several
times approached concerning membership.
I Correct spelling, as amended at the hearing
ARROW PHOTO SERVICE, INC. 1429
In June and again in July , Lufrano , in charge of 5 employees in the production darkroom and
himself a member of Local 21314 , allegedly told McCorkle that he would have to join or stop
working there . Without considering Lufrano's denial of any threat and the question of credi-
bility, it is clear from the evidence concerning the latter 's duties that he is a leadman2 and
not a supervisor within the meaning of the Act . The evidence and a belated concession indicate
that the lowest ranking supervisor over the 8 or 9 employees in the plant is the production
manager , Mutnick, from whom Lufrano takes orders.
McCorkle testified further to three conversations with Mrs. Kaiden in September and early
October . In the first , she allegedly told him that a union official was calling and tormenting
her; would McCorkle get in touch with him and " relieve" her '> McCorkle said that he would
go over and see him, but would not loin , and added , "I think it is not right for him to persecute
you." There was no threat or other interference here.
Nor do I find interference in the next conversation , when Mrs. Kaiden asked whether he had
called the union official . McCorkle replied that he had been unable to see him although he had
made an appointment , and again told her, "a little more strongly ," that he would not join. At
this, Mrs. Kaiden allegedly replied , as the way to succeed , "Mr. McCorkle , stall them." --
And McCorkle agreed that that was a good idea . (Denying these conversations , Mrs. Kaiden
testified that she did on one occasion tell McCorkle that a union official had called him.)
Again according to McCorkle , he initiated a conversation about a week and a half before his
discharge . He stated that the Union would press him but he would not yield , and asked for her
support. When he persisted and asked , " How far will you keep out of it? " she allegedly replied
that she couldn 't tell him that , but begged that he "please do something ." Despite or because
of McCorkle 's persistence , and aside from Mrs . Kaiden's denial that she said more than that
it was up to him and the Union, I find no interference here.
McCorkle then testified to a conversation on the afternoon of October 13 (the complaint
alleges that the interference commenced about that tune ) with Corwin (who has since died but
was at that time the Respondent 's general manager ) and in Mrs . Kaiden's presence. Corwin
allegedly asked him what he was gomgto do about joining the Union, to which McCorkle replied
that he would not loin, "but if itis absolutely necessary to [the ] business ," he would join pro-
vided that the Respondent paid his initiation fee and dues . At this point Mrs . Kaiden said,
"Absolutely no," and left. Her version (sheplacedthis conversation on October 17) is that she
heard only McCorkle 's suggestion about paying the initiation fee and dues for him, and that
without even speaking directly to him said that she would never do that . According to McCorkle,
that morning 3 Corwin had for the first time spoken to him about the Union . he had come into
McCorkle 's darkroom and asked " what [ he] had decided to do about the Union , the Union
matter. He said , ' It is a matter of either/or ..."' Even in the context of McCorkle 's entire
testimony , this was an unlikely beginning for any such conversation, the first between the
two concerning the Union . It is at least as likely that McCorkle initiated this discussion as he
admittedly did that with Mrs. Kaiden . In any event, the alleged interference consisted of the
"either/or" threat and the follow -up question in the afternoon . But McCorkle himself elicited
Corwin's later explanation that the Union was calling for a showdown and the suggestion that
they "wait a little while ... to get something in writing from the Union so as to clear" the
Respondent . This hardly sounds like a threat or interference with McCorkle 's right not to
join. Considering these various elements , and especially the limited extent of the offense if
indeed there was offense here, and Corwin 's unavailability to reply , I find no interference.4
Another instance of alleged interference , according to McCorkle , occurred immediately
after he left Corwin . Again initiating the discussion , he told Mutnick of the earlier conver-
sation . Allegedly replying , " It is open and shut. You either join or leave," Mutnick then spoke
of what Mrs . Kaiden would do and of possible union action . McCorkle , saying "I don't think
they are going to fire me," was apparently not concerned over what Mumick would do. Aside
from the latter 's denial of any such conversation , to rely on his "join or leave" statement as
interference is to take it out of context and to ignore the fact that it was prompted by Mc-
Corkle's apparent search for guidance or at least support.
On the issue of credibility , McCorkle 's loquaciousness was apparent as he testified . Highly
literate , he is equally voluble and irascible . Matching the examples of unreliability noted
2Cf. Hodgdon Brothers-Goudy & Stevens , 106 NLRB No . 211 (not reported in printed
volumes of Board Decisions and Orders ). That Lufrano tested prospective employees does
not establish supervisory capacity ; Schlee, admittedly a rank-and-file employee , tested
McCorkle.
31 have not overlooked McCorkle's testimony concerning Mrs. Kaiden ' s cryptic remark,
still earlier that day , that "this union business simply isn 't going to work out."
4Corwin 's alleged remark after the discharge , that lie join the Union or else, is adverted
to infra.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
infra in Mrs. Kaiden's testimony, I note his denial that he recognized the name of the Union's
president, despite a detailed discussion with him at the union office, which McCorkle did not
deny. Further, he not only denied that he was frequently spoken to concerning the quality of
his work (which is not directly in issue), but he testified to fulsome praise by Corwin during
the course of the last conversation described above. The testimony by the Respondent's wit-
nesses concerning his shortcomings on the job was supported by Schlee, called by the General
Counsel and himself formerly employed by the Respondent. He testified to several complaints
concerning McCorkle's work, and that on 3 or 4 occasions he did over the work which Mc-
Corkle had done. He then explained that many of McCorkle's mistakes developed when he was
pressed for time. On such occasions and when McCorkle had too much work, Schlee worked
in McCorkle's darkroom. Further on the issue of credibility, and in connection with the con-
tradictory testimony by McCorkle and Mrs. Kaiden, neither the testimony nor the demeanor
of the various witnessecindicated theexistence ofsuch easy informality as McCorkle suggested
and several times mentioned. Finally, in view of the fact that orders come in throughout the
day, McCorkle's reliability was scarcely bolstered by his excuse for quitting early: he had no
work.
B. The alleged violation of Section 8 (a) (3)
McCorkle testified that on October 17, after her remark about the union business not going
"to work out," Mrs. Kaiden told him to wait until Corwin came in and to speak with him.
Sometime between 2 and 4 p. m. he went to the bookkeeper for his weekly salary and was paid
not only for the week which had ended 2 days before, but in addition for the intervening time:
he was "paid off." McCorkle then asked Corwin why he had not been given an ultimatum or
notice and Corwin referred to their earlier conversation.
According to Mrs. Kaiden, she reported to Corwin on the afternoon of the 17th what Mutnick
had told her about McCorkle's latenesses and wastageof materials, and asked Corwin to speak
with McCorkle; Corwin did then speak with McCorkle, and it was during this conversation that
she interposed her refusal to pay McCorkle's initiation fee and dues; and Corwin then reported
to her on this conversation, telling her that McCorkle wanted to be paid off. Whatever the
sequence of events, the important difference in Mrs. Kaiden's version is that Corwin told her
that when he spoke to McCorkle about his excessive lateness and waste of material, the latter
"got very huffy" and asked to be paid off. Mrs. Kaiden's testimony that she told Corwin to
hold it in abeyance until Monday is in harmony, however, with McCorkle's that Corwin said
(as confirmed by Mrs . Kaiden) that he would see if the matter could be cleared up and that
McCorkle should call him on Monday afternoon. (Mrs. Kaiden's testimony at this point is con-
fusing as she indicated that McCorkle asked to be paid off after Corwin suggested holding the
matter in abeyance , this suggesting that the matter was closed , and then that Corwin was still
to speak to Mutnick about it on Monday- -presumably before McCorkle was to call him. But
clarification was forthcoming as she detailed her later conversation with McCorkle, which she
concluded with a reference to Corwin's request that McCorkle call him on Monday. It is also
clear that in this later conversation McCorkle was on the defensive, asking what it was all
about, while Mrs. Kaiden referred to the complaints against hi m.)5 Around this revolve two
issues: whether McCorkle quit or was discharged, and the significance and effect of McCorkle's
admitted failure to call on Monday or at any time thereafter.
As to the first, we have not only McCorkle's statement to Corwin about the absence of any
notice (a statement which because of Corwin's intervening death would have to be scrutinized
very carefully), but Mrs. Kaiden's testimony that McCorkle opened the conversation which he
had with her on the afternoon of the 17th with question, "What is this all about? " After the
hearsay testimony that McCorkle told Corwin that he wanted to be paid off, Mrs. Kaiden told
Corwin to let it go until Monday and told McCorkle to call Corwin on Monday. All of this points
to a decision by the Respondent rather than by McCorkle on the question of his employment.
There is no suggestion anywhere in the record that McCorkle was to call on Monday for any
reason other than that the Respondent would try "to clear this thing up." There was no ques-
tion of McCorkle changing his mind or doing anything; it was for Respondent, which had dis-
charged him.
I accept Mrs. Kaiden's testimony in this connection but not her conclusion that it indicates
that McCorkle quit. Most persuasive on this point is the explanation of Mr. McCorkle's dis-
5 Although Mrs. Kaiden testified that she never authorized Corwin to discharge McCorkle,
her affidavit shortly after the event expressly declares the contrary.
ARROW PHOTO SERVICE, INC. 1431
charge" in her earlier affidavit. That neither she nor Corwin in so many words told him that
he was fired is not determinative. (As indicated above, I do not believe that McCorkle asked
Corwin for his money, whatever the latter reported to Mrs. Kaiden.) No more determinative
is McCorkle's conclusion that the bookkeeper, who had no such authority, discharged him.
The latter testified that Mrs. Kaiden had directed her to pay McCorkle off. (This was after
Corwin's report to Mrs. Kaiden on his conversation with McCorkle.) Whether or not McCorkle
appreciated the mechanics or knew who had set the wheels in motion, he had not quit, yet was
paid off. The admitted circumstances and proof beyond McCorkle's testimony indicate and I
find that McCorkle was discharged.6
In making this finding, Ihavenotoverlooked the testimony that at least three of the Respond-
ent's employees were not union members in 1952. The record suggests that these three were
Miss Coutts, whom the bookkeeper specifically mentioned, Mutnick, and McCorkle. Of these,
McCorkle alone was engaged in work closely allied to that of the employees who were union
members; and Mutnick was the supervisor. That fact may have led Lufrano to declare, as
McCorkle testified, that the others had to join and he was no exception. That Lufrano urged
McCorkle to join the Union is clear. Equally clear is McCorkle's idea that the Respondent
pay his initiation fee and dues. One may speculate that the Respondent would not have acted
against McCorkle although he did not join the Union but for the to-do which developed. But
when talk concerning his union status continued and he capped it with his suggestion that the
Respondent assume his obligations if he joined, Mrs. Kaiden or Corwin or both were aroused
to the point of discharging him.
That his shortcomings on the job may have been considered is understandable. But such
shortcomings had persisted throughout his employment and, although a replacement for him
had long been sought, it is not claimed that these shortcomings were the cause for the action
taken. In part,7 if not entirely, the reason for McCorkle's discharge was his failure to join the
Union.8 In short, whatever contributing factors may have existed, McCorkle was discharged
because he had not joined the Union (and a "to-do" developed over it).
We come now to the question of the effect of McCorkle's failure to call on Monday, October
20, or thereafter. (Despite the allegation in the complaint, there is no issue of subsequent
refusal to reinstate.) He testified that, having filed his complaint, he did not "want the job
back again . . . under those circumstances . . . of constant pressure to join the Union."9
Aside from the fact that the Respondent was not responsible for all of this pressure, McCorkle
was in effect attempting to usurp the functions of the Board as he allegedly desired assurance
(without requesting it) that the Respondent would cease and desist from violating Section 8 (a)
(1) of the Act , while at the same time he would have it engage in violations by preventing
lawful efforts by the Union or its members. Nor was he empowered to commingle the question
of such assurance with that of return to work so as to prolong the Respondent's liability for
reinstatement and back pay.
A discriminatee is not normally required to reapply after discharge. But here the door was
left open to reinstatement at theverytimeof discharge and the discussion concerning it. While
McCorkle testified that during that conversation he complained that Corwin had given him no
notice, thus suggesting that he might be willing to join the Union if the alternative were dis-
6I do not rely on McCorkle's testimony that after the discharge Corwin and Mutnick so
conveniently told him that he would not have been discharged had he joined the Union.
7 As in N. L. R. B. v. Whitin Machine Works, 204. 2d 883 (C A. 1), this reason "weighed
more heavily in the decision to fire him than did dissatisfaction with his performance." See
also N. L. R. B. v. The Syracuse Stamping Company, 208 F. 2d 77 (C. A. 2), in which the
Court noted: "It is argued that the respondent had just cause for firing Miss Chilson because
of her poor absentee record, but the company did not discharge her because of that record
even though it might have furnished a sufficient ground." in denying that McCorkle was
discharged, Mrs. Kaiden perforce maintained that his job performance did not cause the
discharge.
8 We need not consider whether the conclusion would be different were it contended that
he was discharged, not because he did not join, but because he brought the question to the
Respondent and sought to have it pay his initiation fee and dues. This is not claimed. The
explanation for the discharge to be found from the evidence is that the Respondent saw his
joining as the only alternative to disruption, and when he posed an unacceptable condition
that sole recognized alternative was withdrawn.
9If, as distinguished from the fact of his failure to call, we consider his reasons, the
frequency with which his shortcomings had been pointed out should not be overlooked.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, he had several times declared unequivocally that he would not join; and I will not
assume that Corwin meant that he would "see if we can clear it up" if McCorkle were now
willing to join. On the other hand, speculating that Corwin did mean that, reason and justifi-
cation could be found in McCorkle's complaint about notice. By his failure thereafter to call,
as requested, McCorkle lost the opportunity to test Corwin's position. The direction that
McCorkle telephone on Monday has been herein cited as evidence that he was discharged be-
cause it indicated that the Respondent, not McCorkle, had made the decision; that very direc-
tion indicates that the decision was, and was declared to be, subject to modification by he
Respondent. The latter had every right and was in fact obliged to limit its liability and correct
the action which it had taken. The request that McCorkle call was reasonable. By his failure
to call he limited his own rights and the Respondent's liability.
The General Counsel has declared that his belated reference to constructive discharge is
"pertinent to this case only if it is assumed, for the sake of argument, that Mr. McCorkle
was not in fact discharged." This is a disclaimer that any rights survived McCorkle's failure
to telephone Corwin after the discharge, as requested. Nevertheless, although actual discharge
has been found, we can further explore and quickly eliminate any question of constructive dis-
charge as justifying McCorkle's failure to call.
Such justification would presumably consist of attitude and acts by the Respondent which
would have constituted constructive discharge had actual discharge not occurred. But thbre is
no evidence of constructive discharge consitions;iO and just as McCorkle was not led to quit
because of any such, his failure to call was not shown to be due to the elements of a con-
structive discharge.
Ill., THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in connection with
the operations described in section I, above , have a close , intimate , and substantial relation
to trade, traffic, and commerce among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Since it has been found that the Respondent has engaged in and is engaging in unfair labor
practices affecting commerce, I shall recommend that it cease and desist therefrom and take
certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Respondent, by discharging McCorkle, discriminated against him
in respect to his hire and tenure of employment in violation of Section 8 (a) (3) of the Act. For
the reasons stated in the subsection entitled "The alleged violation of Section 8 (a) (3)," I shall
not recommend that the Respondent offer reinstatement to McCorkle, and shall limit the pro-
vision for back pay to the recommendation that the Respondent make him whole for any loss of
pay he may have suffered by reason of the discriminatory action aforementioned by payment
to him of the wages which he would normally have earned on October 20, 1952, less his net
earnings , if any, on that day.
For the reasons stated in the subsection entitled "The alleged independent violation of
Section 8 (a) (1)," I shall recommend that the complaint be dismissed insofar as it alleges
independent interference, restraint, and coercion of its employees.
Upon the basis of the above findings of fact and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Matthew McCorkle,
thereby encouraging membership in a labor organization, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
2. By such discrimination, thereby interfering with, restraining, and coercing its employees
in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce, within the
meaning of Section 2 (6) and (7) of the Act.
>o The instant case is readily distinguishable from those cited by the General Counsel
FORT PITT PACKAGING CO., INC. 1433
4. The Respondent has not engaged in unfair labor practices within the meaning of the Act
by allegedly otherwise interfering with, restraining , and coercing its employees in the exer-
cise of rights guaranteed in Section 7 of the Act.
[Recommendations omitted from publication.]
FORT PITT PACKAGING CO., INC.' and UNITED STEEL-
WORKERS OF AMERICA, CIO, Petitioner . Case No. 6-RC-
1422 . June 23, 1954
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before H. G. Boreha rdt,
hearing officer . The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby
affirmed.
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.'
3. The Intervenor contends that a purported contract executed
by the Employer is a bar to this proceeding . The Petitioner
denied the existence of a valid signed contract which could
operate as a bar . The Employer expressed its willingness
to abide by the Board ' s decision on the issue of contract
bar.
The record discloses that subsequent to the Intervenor's
strike for recognition in August 1953, contract negotiations
were entered into between the Employer and the Intervenor.
No full agreement was reached during this period but as a
result of a second strike certain wage rates negotiated by the
parties were put into effect . Thereafter the parties continued
to negotiate and in January 1954 , reached agreement on certain
contract provisions.
In the early part of January 1954 , the Employer ' s attorney,
Albert Shapira , prepared a draft of a proposed contract and
sent this document to Plant Manager Hicks for consideration.
1 The name of the Employer appears as corrected at the hearing.
2General Warehousemen & Employees Union, Local 636, international Brotherhood of
Teamsters , Chauffeurs , Warehousemen ,1, helpers of America, AFL , was permitted to inter-
vene at the hearing. The Petitioner objected to the ruling of the hearing officer that
the Intervenor would be permitted to intervene for the purpose of showing a contract bar.
We find no merit in this objection . Moreover , during the hearing the Intervenor presented
membership cards denoting its representative interest to the hearing officer which were then
checked against the company payroll. Like the hearing officer we find that the Intervenor
has made an adequate showing of representative interest entitling it to intervene in this
proceeding.
108 NLRB No. 193.